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(273 S.W.) He testified over defendant's objection (on, or could have caused plaintiff's condition," the ground already stated) that when the and that his answers were not based upon plaintiff came to him she complained of pain personal knowledge or objective symptoms, in her head, eye, and ears, and of dizziness but solely upon the history of the injuries and sleeplessness, and he testified as to what as detailed to him by the plaintiff, and upon he found, upon examination,

this the recent decision in Kinchlow v. KanCounsel for defendant assert that the wit sas City, K. V. & M. R. Co. (Mo. Sup.) 264 S. ness was violating the laws of the state in W. 416, is cited. However, the facts in the treating or "adjusting” the plaintiff, in that record do not present the basis of the claim he was practicing medicine without a license made by defendant, nor bring this case withfrom the state board of medical examiners, in the Kinchlow Case. The testimony of and and cite State v. Smith, 233 Mo. loc. cit. for plaintiff tended to show that she was 260, 135 S. W. 465, 33 L. R. A. (N. S.) 179; unconscious for 10 days or more after the O'Bannon v. Wydick, 281 Mo. 481, 220 S. W. injury and while in the City Hospital; that 853, and State v. Gardner (Mo. App.) 231 S. her injury was diagnosed as concussion of W. 1057. These cases sustain that asser- the brain, and perhaps fracture of the base tion, but neither the issues in those cases, of the skull. In his testimony Dr. Hoge nor what was held, are closely pertinent or first testified to the appearance of the plaindecisive of the question here in issue. Coun- tiff upon the occasion of his first examinasel further argue that permitting. the wit- tion; that she presented the appearance of ness to testify "as a layman," and to give a person who was ill; that she was unsteady what amounted to a medical diagnosis of in her movements; that, though a warm day, plaintiff's alleged ailments, was error, in her hands and feet were cool, and her perthat it was opinion and hearsay evidence, spiration cool, her pulse rapid and not and upon this cite Norris v. St. Louis, I. M. strong and her blood pressure low. He & S. R, Co., 239 Mo. loc. cit. 711, 144 S. W. then said he first took her history, "a de783, and Atkinson v. American School of scription of what she had been through, and Osteopathy, 199 Mo. App. loc. cit. 270, 202 how she had been feeling as a part of the S. W. 452. These cases announce the general examination," and then without stating what rule that a lay witness will not be permitted plaintiff told him, proceeded to tell what he to attempt a diagnosis, or express a mere found upon examination. He said that she opinion as to the health of a party.

was unable or did not stand on one foot; We have fully indicated above the nature that there was a drooping of the right upper and extent of the testimony of witness Dorn. eyelid as compared with the left, the lid on He was not asked for an opinion as to what the right side lagged behind the other in might or could have caused plaintiff's injury, ciosing or opening the eyes; that the right nor was he permitted to say what plaintiff side of the face did not contract as strongly told him, nor what was her ailment, more as the left, and there was a dropping of the than that he found subluxation of the ver- right side of the face and right angle of the terbra nearest to the skull, and then to say mouth; that in showing her tongue it did not that subluxation of that vertebra causes come out straight, and pointed somewhat to pressure upon the nerves leading to the brain, the right; that all of plaintiff's tendon reface and skull. The technical and somewhat fexes were increased, those on the right formidable word "subluxation," as applied side were more than those on the left; that to one of the bones forming the human spine then, and on several examinations afterward, means no more than a partial or incomplete he “obtained partially what is called a Babdislocation of such a bone. We are of the inski reflex in the toes of the foot," that is, opinion that a person who has made a spe- a reverse of the normal movement; that in cial study of the human spine, followed by | “injuries to the motor tract of the nervous several years of experience in detecting and system, extending from the brain down to attempting to adjust "subluxation" of ver- the spinal cord, there is a tendency for these tebrae, has shown such special knowledge to be reversed.” He further testified that he of that subject as qualifies him to testify as weighed the plaintiff upon several occato the condition or relative position of a sions, and that her weight varied from 87 to vertebra found upon a direct physical exam- 95 pounds, which was below normal, and ination. In that particular he has acquired, that he tested the hearing distance of the by technical training and practical expe- plaintiff's ears, and found the hearing disrience, and special knowledge not shared by tance of the right ear only half or less than men in general. 17 Cyc. 36. We find no er- half that of the left. He further stated ror under this assignment.

that the slow contractions, the drooping of [5] III. The defendant assigns error in the right eyelid, and the pointing of the admitting certain testimony given by Dr. tongue to the right, he called a partial paHoge, a specialist in nervous diseases, who ralysis of the right side of the face. first examined the plaintiff about four months All of this testimony went in without oh. after the date of her injuries. The com- jection on the part of defendant. The witplaint as made is that Dr. Hoge was permit- ness was then asked the following quested to give his opinion as to what "might | tion:

"Q. Now, Doctor, state whether or not a specialist in diseases of the ear, who examconcussion of the brain, caused by a fall, so as ined the plaintiff one year after her into render the patient unconscious for a period juries, and who testified that in his opinion 9f 10 or 12 days, if that would cause it-might the condition of plaintiff's right ear

was or could that have caused that?"

probably not due to the accident, but to othDefendant objected to that as being an er causes existing prior to the accident. He invasion of the province of the jury, and, based this in large part upon the statement the objection being overruled, the witness of the plaintiff that her ear began to disanswered that it could. Later on, the like charge about two weeks after her injury, question was again asked, stated as follows: and his theory was that, if the rupture was

"Assuming that she was thrown from the caused by the fall, discharge from the ear street car and fell to the pavement, rolled to would have appeared earlier than two weeks. the curb, and did receive a concussion that ren In O'Leary's Case the cause of an infected dered her unconscious for a period of 10 or 12 bone in the arm of the plaintiff was said to days, would the conditions you found present be "practically the whole case," so far as at your examination, and that which the plain-| recoverable damages were concerned. In tiff in this case was suffering from, could that that case the respondent had received an inbe caused by such a concussion? Might or jury to his thumb. Afterward there was a could that be caused ?”

boil on his wrist and later an infection of

The contentions were There was again the objection that there the bone of his arm. was an invasion of the province of the jury. stated (303 Mo. 372, 260 S. W. loc. cit. 58): In Kinchlow's Case, there was a dispute in “Respondent contended the thumb injury the testimony as to whether the plaintiff caused the bone infection, and this caused the had received a blow upon the head. In that appearance of the boil. Appellant insisted the case, the medical witness, in his answer as caused the bone infection. There was expert

boil was not caused by the injury, but itself to the cause of the plaintiff's alleged injury, evidence offered for the purpose of supporting had answered: “The blow upon the head each of these theories." caused that." He further said that in making his examination he had obtained a his In that case it was remarked that the tory of the case, and had taken that into trial court had permitted the experts to tesconsideration in making his answer.

There lify for respondent “that the injury to the is not such a situation under the record in thumb caused the infection and disease of this case.

the bone." This was assigned as error. It [6] IV. The defendant assigns error in ad- was said that its admission under the rule mitting the testimony of Dr. Hoge and of then (theretofore) favored by the decisions Dr. Ferris, in permitting them to state wheth- of this state was error. But, after a review er the condition might or could result from of the authorities in this and other states, it the injuries, urging that this gave the jury a

was held that said rule was unsound. The “roving commission,” and enabled them to rule pronounced unsound, and not to be folreturn a verdict upon mere speculation, cit. | lowed, was the rule confining the answer to ing in support thereof O'Leary v. Scullin a statement that the condition under the conSteel Co., 303 Mo. 363, 260 S. W. 55.

sideration "might or could” have ‘resulted The testimony of Dr. Hoge has been refer- from the injury complained of. The underred to. Dr. Ferris, who was a physician in lying reason in O'Leary's Case was stated the City Hospital, examined the plaintiff (303 Mo. 381, 260 S. W. 61): within a few hours after she was injured. He "In the instant case the jury cannot, without testified to abrasions about the face and head expert testimony, get at the cause from the of the plaintiff and to her state of uncon other evidence, because the evidence has no sciousness, which continued for several days. tendency to prove to the lay mind a relation of His diagnosis, from examination and a period cause and effect. It could not logically find the of 3 or 4 weeks, was that there was a frac- cause from the expert testimony, if the rule in ture of the floor of the skull, where the spinal what might or could result from the injury,

question is applied to restrict expert opinion to vertebræ connect with the skull, and he said since that does not necessarily go further than that with every skull fracture there is con a possibility, and a mere possibility does not cussion. He testified that there was a rup- satisfy the burden of proof." ture of plaintiff's ear drum, and that the middle ear became infected; also that rup

Further on it was said: ture of the ear was common where there "In fact, it makes no difference which expert was basal skull fracture. The witness testi- witness the jury chooses to believe in this case. fied, in answer to questions, that the frac- So far as they can tell from the nonexpert ture and dislocation of vertebra might or testimony, either cause might or could produce

the result." could have been caused from a blow upon the head; that rupture of the ear drum In that situation the testimony of the excould be caused from traumatism, a blow perts for the respondent that the injury to upon the head; and that rupture would the thumb caused the infection of his ulna cause infection." Defendant introduced a was held admissible. As has been stated al

(273 S.W.) ready, this defendant's objection to the ques- earning $20 per week. It is objected that tion, in the trial court, was that it invaded there is no requirement that the jury, bethe province of the jury. The objection urg- fore assessing damages for loss of earnings, ed here is that it gave a commission to the inust find that such loss was the direct result jury to rove through the evidence and ren of the injuries complained of. The instrucder a verdict on mere conjecture, and on the tion is not subject to that objection, and it is theory that there was no positive evidence not identical, as defendant urges, with the before it as to the cause of plaintiff's condi- instruction condemned in O'Leary's Case. In tion, The evidence has been sufficiently stat- that case, the court pointed out, the loss of ed. Defendant, as to the physical acts re- time and earnings of the plaintiff from the sulting in plaintiff's fall and injury, pro- injury to his thumb was slight, unless the ceeded upon the theory that she stepped vol-bone infection came from it, which was an untarily off the platform of a moving car issue of fact. The instruction there authorinto space," or that she deliberately walked ized recovery by the plaintiff for the loss of off, in a manner which caused her body to wages since his injuries, if any, not to expitch forward onto a paved street, coming ceed $3,300. The court then observed that the to rest only when her head came to the curb, following clause in the instruction confined 10 or 12 feet away. This, with the long state damages for future loss of wages to those of unconsciousness shown to have followed, which were “the direct result of such injuand the testimony as to the conditions ob- ries, if any," but that there was no such limserved by the examining physicians, and tesitation with respect to wages already lost ; tified to by the plaintiff, distinguish this case that is, under the instruction, the jury were from O'Leary's Case. In this case the jury authorized to find damages for the diseased upon the nonexpert evidence could readily condition of the bone, although the jury, in believe that plaintiff had sustained injuries returning a verdict for the plaintiff on the to the skull and concussion of the brain. ground that his thumb was hurt, might de· [7] Besides, the contention now of defend cide that the disease of the bone did not reant upon this question is inconsistent with sult from the injury to the thumb. That is his contention and objection made in the not the condition in the instant case. Here trial. Then he urged that it was an inva- | the limitation applies generally and equally sion of the province of the jury; that is, to whatever loss or damage the plaintiff may determined the very question which the jury have sustained, if any, as the direct result were to decide, that it was too definite. Now of the negligence of the defendant. Le urges that it is too indefinite; that the [9] Also, in this case, the court gave demedical testimony that certain conditions fendant's instruction 11, telling the jury that, “could or might be caused" by certain in- ir the rising and impairment of plaintiff's juries was of no aid to the jury. In effect it right ear was not the result of the accident is an effort to convict the trial court of error

in question, they should not find any damupon a theory in opposition to that of the age therefor. It is further objected that the objection urged upon that court. The con

closing line of instruction 2 assumes neglitention cannot be allowed upon the facts in

gence on the part of the defendant. We do the record.

not so regard it, taking the whole into con[8] V. The defendant complains of instruc- sideration, and taking also into consideration No. 2 given for the plaintiff on the meas

tion the other instructions given, defining ure of damage. Thg instruction is as fol- and requiring a finding of negligence as a lows:

prerequisite to recovery by plaintiff. "The court instructs the jury that, if you find (10) VI. It is insisted that the verdict, the issues for the plaintiff in this case, you will, wbich was in the sum of $12,500, is grossly in determining her damages, take into consid: 1 excessive. The testimony of Dr. Hoge has eration the mental and physical pain endured by her since her injury, and any consequences been sufficiently stated. He testified that in thereof, if any, the nature and extent of her his opinion the partial paralysis of the face injuries, if any, and whether or not they are

of plaintiff was apt to be permanent, and temporary or permanent, the impairment of her that the general condition or symptoms deearning capacity, if any, and not exceeding $20 scribed might be permanent. Defendant inper week, and find for her in such sum as introduced Dr. Will, who examined plaintiff your judgment, under all the facts and circum- about one year after her injury, whose opinstances in the evidence, will be a fair and rea

ion was that there was no basal skull fracsonable compensation to her for whatever injuries she has sustained, if any, as a direct result ture, and in various aspects his testimony of the negligence of the defendant."

was in conflict with that of Dr. Hoge. The

plaintiff testified that at the time of the trial Upon this the decision in O'Leary v. Scul- her weight was 93 pounds, and that prior to lin Steel Co., 303 Mo. 363, 260 S. W. 55, is the accident she weighed from 110 to 115 cited, in the holding there made, upon the pounds and was in good health ; that after instruction given, and condemned in that her injury she suffered from headaches and

The testimony of the plaintiff was extreme nervousness; that she had after the that at the time she was injured she was accident a slight attack of St. Vitus dance;

case.

that she suffered from pains in her back; STEFFEN V. STAHL. (No. 17102.) that she was unsteady on her feet, and her

(St. Louis Court of Appeals. Missouri. hearing was affected, and her memory af

June 2, 1925.) fected by the injury; that she had a smothering feeling when in a crowd. Her testi- I. Mortgages 319(3) - Evidence held to mony tended to show an improvement in her show defendant procured cancellation of his condition in respect to recurrence of head

note and deed of trust by fraud. aches and other pains, and ability to remem

Evidence held sufficient to show that defendter, and to work, but that her ear was in bad ant procured cancellation of his note and recondition. At the time she was injured she lease of deed of trust securing it by his wife's

aged mother under circumstances amounting to was earning $20 per week as an address-fraud in law, entitling her to have release set ograph clerk and mail clerk. As the result of aside. her injuries she did only 212 days' work between March 2, 1921, the time of her in. 2. Gifts em 38-Concealment of material facts,

effect of which is to perpetrate fraud, is jury, and September 1, 1921 ; that, beginning

"fraud" in law. September 1, 1921, she worked 6 weeks at

Concealment of material facts by which a salary of $10 per week, later was employed donee takes undue advantage of donor, effect at intervals at not more than $15 per week of which is to perpetrate fraud on donor, conLy one or more firms, and on June 1, 1922, stitutes "fraud" in law, and gift will be set was employed by the Certainteed Products aside. Company at $60 per month, which salary on [Ed. Note.-For other definitions, see Words August 1, 1922, was raised to $75 per month and Phrases, First and Second Series, Fraud.) for full working time, and she was so em 3. Gifts em 49(3)-Donee has burden of prov. ployed at the time of the trial, in October, ing clearly and convincingly that donor deliv. 1922.

ered gift, intending to part with property The defendant has cited several cases: therein. Jones v. Frisco R. Co., 287 Mo. 64, 228 S. Alleged donee has burden of proving by clear. W. 780; Crockett v. Kansas City Rys. Co. and convincing testimony that donor delivered (Mo. Sup.) 243 S. W. 902; Rigley v. Pryor, gift, intending to forever part with property

therein. 290 Mo, 10, 233 S. W. 828; Corn v. Kansas City, C. C. & St. J. Ry. Co. (Mo. Sup.) 228 S. 4. Gifts 47(3)-Release of deed of trust and W. 78. Plaintiff refers to Laughlin v. Kan gift of note secured thereby presumed void; sas City Southern R. Co., 275 Mo. 459, 205

burden on defendant to prove contrary. S. W. 3; Page v. Payne, 293 Mo. 600, 240 Where there was close confidential relation S. W. 156; Gilchrist v. Kansas City Rys. between defendant and his wife and wife's aged Co. (Mo. Sup.) 254 S. W. 161; Crockett v. mother, there was presumption that mother's Kansas City Rys. Co. supra. It is not neces- release of deed of trust on defendant's farm and

gift to defendant of note secured thereby was sary to discuss these cases in detail, or oth- void, and burden was on defendant to prove that ers referred to in them. This case appears transaction was fair and valid, and free from to have been well tried, and no unusual in- undue influence and fraud. cident is shown to have occurred in the

5. Appeal and error cm 1009(1)-Chancellor's course of the trial, calculated to arouse the

finding on facts held entitled to great defer. passions of the jury. We do not feel justi

ence on appeal. fied, upon consideration of the record, in re

In suit to set aside release of deed of trust versing the judgment and remanding the on ground that it was procured by fraud, chancause unconditionally, but. in view of the cellor's finding on facts based on oral testimony improvement shown in the plaintiff's condi- must be given great deference on appeal, though tion and earning power and of all the cir- it must accord with appellate court's own view cumstances shown concerning the nature of of record. her injuries, we are of the opinion that a 6. Limitation of actions Cw48(1)-Statute does remittitur should be required of a portion not begin to run against suit on note untit of the sum awarded. If, therefore, the plain maturity of note. tiff will within 10 days file a remittitur in Statute does not begin to run against suit the sum of $3,500, as of the date of the on note until maturity of note. judgment, the judgment should be aflirmed ; 7. Limitation of actions am 100(13)-Defraudotherwise, it should be reversed, and the

ed party held not charged with notice of reccause remanded.

ord altered by defendant's fraud.

Though parties to recorded instrument are SEDDON, C., concurs.

charged with knowledge of contents thereof at

time it was recorded, plaintiff, who stood in PER CURIAM. The foregoing opinion of confidential relationship to defendant, was not

charged with knowledge of defendant's frauduLINDSAY, C., is hereby adopted as the opin- lent alteration of record by filing release of ion of the court.

deed of trust procured by defendant's fraud, All concur; WOODSON, J., in all except so as to set running 10-year limitation of Rev. what is said about the O'Leary Case. St. 1919, $ 1317.

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(273 S.W.) 8. Pleading Om433(2)- In absence of demurrer | the defendant falsely and fraudulently, by

challenging its sufficiency, petition held good taking unfair advantage of her lack of eduafter judgment.

Cation and in violation of the confidential reIn absence of demurrer challenging its suf- lations existing between them, betrayed the ficiency, petition in suit to set aside deed of trust and confidence reposed in defendant, trust as obtained by fraud held good after judg. and with intent to defraud her out of said ment.

debt the defendant obtained possession of Appeal from Circuit Court, Jefferson Coun. said note and deed of trust from her, and ty; E. M. Dearing, Judge.

thereupon falsely, fraudulently, and with in"Not to be officially published.”

tent to cheat and deprive her of said debt,

caused said note to be marked "Paid.” And Suit by Elizabeth Steffen against John on September 23, 1913, the defendant frauduStahl. Decree for plaintiff, and defendant lently caused to be entered a pretended reappeals. Affirmed.

lease of said deed of trust and cause the deed See, also, 266 S. W. 474.

of trust to be canceled by the recorder, thereMiller & Kleinschmidt, of Hillsboro, for hy defrauding plaintiff out of the debt; that appellant.

no consideration was given for the cancelClyde Williams, of Hillsboro, and Arnold lation of the note or release of the deed of Loewenstein, of St. Louis, for respondent.

trust, and that plaintiff never assented there

to, but that same was done without her DAUES, P. J. This is a suit filed in the knowledge or consent, and that the defendcircuit court of Jefferson county on Septem- ant has always represented to plaintiff and ber 9, 1919, the purpose of which is to set assured her that said note and deed of trust aside the release of a certain deed of trust, are still in force and a lien against said recorded September 13, 1913, on the ground real estate, and that plaintiff did not learn that such release had been obtained through of the cancellation and satisfaction of the fraud. Judgment was rendered in the low- record until August 25, 1919. The petition er court in favor of plaintiff, and defendant then contains the averments that such replas appealed.

resentations were untrue, false, and fraudUnder the issues presented, it becomes ex- ulent, and known to him to be such, and pedient to set out the full effect of the plead- that said representations were made solely ings. The petition alleges that defendant was for the purpose of deceiving and misleading on August 26, 1909, and still is, the owner of and defrauding plaintiff out of the debt mencertain described real estate situated in said tioned. Jefferson county. It is then alleged that The answer admits the relationship of the plaintiff lived with defendant and his wife parties and the ownership of the property by at their home on a farm from about March the defendant, and alleges that plaintiff 15, 1907, until February 17, 1919, at which made her home with the defendant and his time the defendant's wife, who was the wife during the time alleged, and that deplaintiff's daughter, died; that, after the fendant and his wife during her lifetime death of defendant's wife, plaintiff continued borrowed the sum of $1,300 from plaintiff, to make her home with defendant until Au- and executed the note and deed described in gust 15, 1919. It is averred that plaintiff is the petition, but denies the other allegations an old lady, more than 68 years of age, being of the petition. For further answer it is alunable to read or write English, and is with leged that during the period from March 15, out education and entirely ignorant of busi- | 1907, to August 15, 1919, plaintiff lived with ness affairs; that she was under the com- the defendant at his home as a member of plete influence and control of the defendant, his family; that during that time he mainand absolutely relied and depended upon him tained and supported her without cost to her, in all of her dealings with him. It is then and that he paid interest on said note until charged that on August 26, '1909, the defend- September 19, 1913, as same fell due annualant induced plaintiff to lend him $1,300, and ly; that on September 19, 1913, plaintiff bethat she made him such loan, taking a prom-/ ing still the owner of the note, in consideraissory note for the amount, payable sixtion of her continuing to live with the deyears after date, and bearing interest at the fendant, made a gift of the note to the derate of 3 per cent. per annum, and that de- fendant, certifying on same over her signafendant, together with his wife, to secure ture that she had received payment of same the payment of said note, executed a deed in full, and thereupon the defendant became of trust upon the described property. Said the sole owner thereof. The answer also deed of trust is dated August 26, 1909, and pleaded the five-year statute of limitation. was duly recorded the next day. It is then The trial court, upon a submission of the alleged that plaintiff has received no part of cause, having heard the evidence as to the the principal or interest of said note, and circumstances under which the note and that the entire amount, with interest, is due deed of trust were executed, and the circumand payable. The petition then alleges that stances under which the parties lived to

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